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The politicizing of the U.S. Constitution: How politics have changed the supposed neutral branch of our government

Debates among political parties have erupted across the United States regarding President Obama’s United States Supreme Court Justice nomination, Chief Judge Merrick Garland.

Photo by Nicholas Kamm (Getty Images).

The sudden death of Justice Antonin Scalia on February 13, 2016, put an even bigger spotlight on President Obama and his administration.  About a month later, on March 16, 2016, President Obama nominated Chief Judge Merrick Garland of the U.S. Court of Appeals for the D.C. Circuit.  In his nomination speech, President Obama described Chief Judge Garland, “not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency modesty, integrity, evenhandedness and excellence.”  Despite threats from Republican Senators, President Obama chose Chief Judge Garland because, “his long commitment to public service [has] earned him the respect and admiration from leaders from both sides of the aisle.”

Today, Chief Judge Garland has more federal judicial experience than any Supreme Court nominee in history. 

Chief Judge Garland was born in Chicago, Illinois, and attended Harvard Law School.  After law school, he clerked for U.S. Supreme Court Justice William Brennan.  In 1997, Chief Judge Garland was confirmed to sit on the U.S. Court of Appeals for the D.C. Circuit, receiving majority support from both parties.  Today, Chief Judge Garland has more federal judicial experience than any Supreme Court nominee in history.  Although there has been no serious questioning of Chief Judge Garland’s qualifications, there has been serious contention as to where he stands politically.

Being nominated by a Democratic President has portrayed Chief Judge Garland as being a liberal.  However, his record displays a more moderate ideology.  Chief Judge Garland has repeatedly voted against detainees in Guantanamo Bay, while also siding with workers in employment discrimination cases and against criminal defendants who claimed their rights were violated.  Chief Judge Garland also has a history of strongly adhering to U.S. Supreme Court precedent, regardless of whether he personally agrees with it.

The U.S. Court of Appeals for the D.C. Circuit’s caseload is largely made up of administrative law cases.  Unfortunately, this means that Chief Judge Garland’s views on more controversial issues, such as abortion, immigration, and LGBTQ rights, are unknown.

Even though not much is known about Chief Judge Garland’s stance on the more controversial issues that are currently facing the U.S. Supreme Court, this has not stopped the two major political parties from claiming how liberal, moderate, or conservative he is.  Republican Senators officially took a stance against any potential nominee, before President Obama had even announced any candidates.  Once President Obama announced his nominee, Senate majority leader, Mitch McConnell, reiterated his position and later dismissed the possibility of Republicans considering Chief Judge Garland after the November elections.

On Fox News Sunday, Senator McConnell said that he did not think the Senate would want to confirm a judge that would move the court “dramatically to the left.”  Senator McConnell has also explained that his party is following a longstanding tradition by vowing not to consider any Supreme Court nominee until after a new President is inaugurated in 2017.

Only once, which was the only election-year court opening in the past eighty years, did the Senate refuse a nominee.

Unfortunately for Senator McConnell, this is not true.  In the past century, there have been twenty-five presidential elections.  Just four Supreme Court seats opened up in those election years.  Only once, which was the only election-year court opening in the past eighty years, did the Senate refuse a nominee.  Therefore, the scenario Senator McConnell described has occurred only once in the past century, and that decision did not actually leave a vacancy on the court.

In 1968, Chief Justice Earl Warren told President Lyndon B. Johnson he planned to retire.  President Johnson nominated Abe Fortas to replace Chief Justice Warren, but faced strong bipartisan Senate opposition.  Justice Fortas then asked to have his name withdrawn and instead remained an associate justice.  In this case, the Senate’s decision to not confirm did not leave an actual vacancy because Chief Justice Warren decided to stay.

Justice Scalia’s seat will remain vacant as long as the Senate refuses to confirm a nominee.  As SCOTUSblog editor, Amy Howe, wrote, “The historical record does not reveal any instances since at least 1900 of the president failing to nominate and/or the Senate failing to confirm a nominee in a presidential election year because of the impending election.”

Most Republican Senators, including both North Carolina Senators, have refused to meet with Chief Judge Garland.  Those that have demonstrated interest in a meeting have received serious backlash from their fellow Republicans.  Illinois Senator Mark Kirk was the first Republican Senator to break from Senator McConnell’s position and has scheduled a meeting with Chief Judge Garland.  Senator Kirk previously told a Chicago radio station that his fellow Republicans should “man up and cast a vote.”

Democrats have also been trying to refute the arguments being made by Republicans that they are simply following the “Biden rule.”

The Democrats on the other hand, have tried to take advantage of the situation.  They have tried to pressure Republican Senators to “do their job.”  Democrats have been trying to refute the arguments being made by Republicans that they are simply following the “Biden rule.”   In 1992, Senator Biden was discussing a hypothetical vacancy and said the president, George H.W. Bush, should “not name a nominee until after the November election is completed.”

Vice-President Biden has tried to ameliorate the effects of this statement by denying the existence of a “Biden rule.”  He also pledged to consider the nominee if “the President consults and cooperates with the Senate or moderates his selection absent consultation.”  Republicans have called Vice-President Biden a hypocrite and have stated that no matter how hard he tries to change what he said, it will not make a difference.  Republican officials also point out the contradictory statements that Vice-President Biden has made.

Vice-President Biden has tried to appeal to the people by saying that a 4-4 Court could have serious repercussions on U.S. Citizens’ fundamental rights.  On the other hand, he has also previously said that the costs of a divided Court are actually, “quite minor.”

It has been established by the U.S. Supreme Court that the act of nomination is separate from the act of confirmation. 

It has been established by the U.S. Supreme Court that the act of nomination is separate from the act of confirmation.  Article 2, Section 2, Clause 2, of the U.S. Constitution describes the appointment process of a Supreme Court Justice.  Based on the Framers intent, just as the President has complete discretion to use his veto power, the Senate has complete and final discretion in whether to accept or approve a nomination.

Therefore, no matter how much the Democrats want to pressure the Republican-controlled Senate to act, it has no power to do so.  Our constitutional text or tradition does not require the Senate to act on, much less confirm, a presidential nominee to any office.

However, this has not stopped both political parties and several interest groups to voice their opinions on what the other should be doing.  Many law professors fear that this conflict will create a judicial gridlock.  This passionate debate has made several Congressional candidates pander to their constituents in hopes of gaining their votes.  While those that do not, are at risk of losing their respective congressional races.

A CNN poll found that two-thirds of Americans want the Senate to hold confirmation hearings on [Judge Garland’s] candidacy . . . 

According to a Quinnipiac University poll, voters say two-to-one that the Senate should vote on Chief Judge Garland.  Additionally, a CNN poll found that two-thirds of Americans want the Senate to hold confirmation hearings on his candidacy, and a majority of Americans say the Senate should ultimately vote to confirm him.  Unfortunately, interest groups have more of an effect on what our government actually decides to do.

Senator McConnell said on Fox News Sunday, that he “can’t imagine that a Republican majority in the U.S. Senate would want to confirm, a nominee opposed by the National Rifle Association.” Lobbyists for the National Federation of Independent Business (“NFIB”) have also decided to step up their opposition to President Obama’s nominee.  They are the first notable business association to openly oppose the nomination of Chief Judge Merrick Garland.

This is the first time in the NFIB’s  history that they are weighing in on the Supreme Court nomination process.  Hundreds of protests have been scheduled nation wide by both sides to argue this issue.  Non-profits and political action committees are also already trying to raise funds to begin advertising their respective viewpoints.  This only confirms Chief Justice Roberts comments made during a speech at the New England School of Law, where he discussed how politicized the nomination process had become.

Chief Justice Roberts emphasized the fact that the Supreme Court is supposed to be free of any political party influence, but recently this has not been the case. Chief Justice Roberts used Justice Ginsburg and Justice Scalia’s nomination processes as examples of how a nominee should be judged based on their merits, rather than by the political affiliation of who is nominating them. Unfortunately, this process has only gotten increasingly political.

Perhaps George Washington was correct in his farewell address when he criticized the idea of having political parties by stating,

Let me now take a more comprehensive view and warn you in the most solemn manner against the baneful effects of the spirit of party, generally.  The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism.

Josue Jimenez, Managing Editor Emeritus
About Josue Jimenez, Managing Editor Emeritus (18 Articles)
Josue Jimenez is a 2017 graduate of Campbell Law School and served as the Managing Editor for the Campbell Law Observer during the 2016-2017 academic year. He is a Los Angeles, California native, but has lived in Charlotte, NC, since November, 2003. In 2013, Josue graduated from the University of North Carolina at Chapel Hill with degrees in Global Studies (Concentration in Politics, region Latin America) and Religious Studies (Focus on Early Christianity). From August, 2013- July, 2014, Josue worked as a legal assistant at an immigration law firm in Grand Rapids, MI. During the summer of 2015, he interned at Fayad Law, PC, where he worked on immigration and criminal defense cases. In the summer of 2016, Josue interned at the Charlotte Immigration Court where he prepared draft decisions for Immigration Judges on immigration matters including cancellation of removal and asylum applications. As well as, consulted with Immigration Judges and Judicial Law Clerks regarding pending decisions. Josue is currently the Vice-President of the Student Bar Association.
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